Friday, March 31, 2017

Changing stories told on the stand after convictions
is so common, court watchers have a name for it: "Testilying."
A stark reality of the criminal justice system is that people lie. They
lie to stay out of jail, to get out of jail, to curry favor with cops, the Philadelphia Inquirer reports.
Police sometimes lie, too. Untangling who is lying in criminal cases can
be “absolutely daunting,” said lawyer Richard Scheff, who recalled wrestling
with the issue when he was a federal prosecutor. "There can be any number
of reasons why people change their statements."

Scientific advances in crime solving — especially DNA testing — have
freed the wrongfully convicted and proven guilt. Almost as a rule, experts say,
courts don’t like to reopen old cases without compelling scientific evidence.
Jennifer Creed Selber, former chief of the Philadelphia District Attorney's
office’s homicide unit, acknowledged witness recantations are a “pervasive”
problem. She believes witnesses usually recant because they fear retaliation
from defendants. “If we attempted to prosecute every witness that perjures
themselves, it would be a completely unworkable and impossible situation.”

Five years ago, the University of Michigan Law
School and the Center on Wrongful Convictions at Northwestern University's law
school started a database of criminal exonerations since 1989. The National Registry of Exonerations has catalogued over
2,000 cases.

DNA evidence spurred many, but the growing number of
exonerations has led to a “profound change” in the perception of convictions,
said Samuel Gross, senior editor of the registry.

“What the DNA cases showed everybody,” he said, “is
that a lot of criminal convictions that no one had thought to think about were
wrong.”

More than half of his registry’s cases involve
perjury and/or false accusations.

Much lying stems from misconduct by police and
prosecutors desperate to solve crimes, researchers say. “Witnesses are
pressured, threatened, subjected to violence, offered secret deals such as
reduced charges in the case at hand or for other crimes, or otherwise coerced
or persuaded to falsely accuse the defendant,” a 2013 registry report concluded.

James McCloskey, the founder of Centurion Ministries, a New
Jersey-based organization that has helped exonerate more than 50 prisoners
since 1980, said about three dozen witnesses have recanted their testimony in
Centurion cases.“They want to reconcile themselves, really help
right a terrible wrong,” McCloskey said, but they fear getting in trouble. It
can take years to get a witness to publicly acknowledge the lie — and then
additional years to actually win an exoneration.

Wednesday, March 29, 2017

Richard J. Hart had busted bootleggers during
Prohibition, gotten into gunfights with killers, and saddled up his prized
horse, Buckskin Betty, and tracked thieves and fraudsters across the vast
prairies of the half-tamed Great Plains, reported the Omaha World Herald.

He had forged
friendships with the Omaha and Winnebago Tribes. He had made powerful enemies.
He had met and protected the president of the United States.

He had shot well, punched first, posed for countless
newsmen, strummed the mandolin and said precious little. He refused to talk
about where he had come from, how he appeared one day in tiny Homer, Nebraska,
why his own wife had never met a single relative of his.

He dressed like he was trying to prove something:
the white hat, a bow tie, riding britches, riding boots and, hung off his belt,
a pair of shined-up, pearl-handled pistols.

He called himself Richard Hart, or sometimes RJ, or
sometimes Richard James, but it didn’t much matter. For decades, Nebraskans
knew him by his nickname: Two Gun.

It was Two Gun Hart who walked into a Chicago
courtroom, an aging lawman now, jowly and paunchy, looking out of place and
nervous as the cameras flashed and an overflow crowd leaned in to hear his
words. He told the judge he couldn’t much see anymore — cataracts and an old
police injury. And then he made a single, simple request: Can I please wear my
hat on the stand?

The question made perfect sense, because Richard
“Two Gun” Hart, the man raising his right hand and pledging to tell the whole
truth, had spent a lifetime carefully crafting his image, or concealing it,
depending on which way you wanted to eyeball it.

He was a decorated war veteran, a fearless
Prohibition agent, a skilled investigator and Homer’s longtime town marshal —
and yet he was also something else, something he had successfully hidden since
the day he disappeared from Brooklyn at age 15.

If he seemed too good to be true, that’s because he
was. But, somehow, his whole truth seemed even more fictional than his fiction.

A lawyer asked: What is your name?

Richard J. Hart, he answered.

No, no. What name were you born with?

He spelled his first name for the jury:
V-I-N-C-E-N-Z-O.

And then he uttered his family name in public for
the first time in nearly a half-century.

Capone.

The decorated Nebraska law man was the older brother
of famed Chicago bootlegger Al Capone.

Tuesday, March 28, 2017

Legislators from both parties say they will try to
re-institute the death penalty in Delaware this year with a measure soon to
be introduced, reported The News Journal.

“Delaware has a long history of applying capital
punishment cautiously, judiciously, and infrequently,” said State Sen. Dave
Lawson. “These proposed changes would raise the imposition of such a sentence
to a new level, removing what the court found objectionable and strengthening
protections afforded defendants.”

The state Supreme Court last year ruled the capital
punishment law unconstitutional because it allowed a judge, not a jury, to
determine that "aggravating circumstances" made a crime heinous
enough to deserve a death sentence. There are 22 of those aggravating factors,
such as crime committed against a police officer, crimes in which hostages
are taken or if the crimes that are "outrageously or wantonly
vile, horrible or inhuman in that it involved torture or depravity of
mind."

The Court's 4-1 decision also faulted the law
for allowing juries to find those aggravating circumstances without a unanimous
vote, using a standard of proof that was too low.

A bipartisan group of legislators
unveiled the "Extreme Crimes Prevention Act," which would change the
law to address those concerns, effectively reinstating the punishment. It would
require that juries unanimously decide that the aggravating circumstances
merited a death sentence, and requires proof of those circumstances "beyond
a reasonable doubt."

It also would require the judge and jury to weigh
"mitigating factors," which would suggest the death penalty was
unjust, against the "aggravating factors."

Those 450,000 people have been charged with a crime,
and all—except for a small percentage facing life in prison—have a right to be
free. These men and women sit in jail because they do not have the money to get
out, pending trial.

Bail is an age-old tool that allows judges to
release defendants pending trial by requiring them to post a certain amount of
money as a way of ensuring they’ll return to court. To make bail, defendants
post collateral, pay the amount in cash or get a bail piece—insurance
policy—from a bail bond company, which typically charges a 10 percent fee.

Let’s do the math. Mr. Smith gets arrested for
assault. The court sets his bail at $1,500. The bail bond company
needs $150 to post Smith’s bail. Smith doesn’t have it, so he sits in
jail for 75 days awaiting trial. Smith pleads guilty and is sentenced to
time served and released.

Because Mr. Smith didn’t have $150, taxpayers
shelled out $85 a day for a whopping $6,375.

Bail serves two purposes: To guarantee that
defendants appear for court; and to protect the public from those who are a
potential threat. Proponents of cash bail say the money to post bail
often comes from family members, and serves as a deterrent to fleeing.

Bail is not punitive. Although violent crime rates
are at historic lows, the Trump Justice Department has made violent crime a top
priority. Attorney General Jeff Sessions would do well to be smart, as
well as tough, on crime. A first step might be setting aside funds for
states who commit to reexamining pretrial detention.

A recent
study in Maryland found that people arrested in the state from 2011 to
2015 paid combined bail premiums of more than $256 million. Those who use the
services of a bail bond company do not get back any of the money paid.
More than 25 percent of that money was paid by people who were acquitted or
never faced trial.

Last fall, Maryland Attorney General Brian E.
Frosh told members of the House of Delegates that judges and court
commissioners must take into account the accused’s ability to pay before
setting bail. According
to the Baltimore Sun, Frosh said that if bail is out of reach for a
defendant, the courts would find that unconstitutional.

Two years ago, New Jersey voters changed the state
constitution to implement a new bail system that focused on expanding
assessments of defendants to determine whether they should be released.
The New Jersey Bail Reform and Speedy Trial Act went
into effect in January. The new law will rely on a computerized risk
assessment tool to make bail decision and is expected to reduce costs and
significantly reduce the state’s jail population.

In New York City, Mayor William de Blasio earmarked
$17.8 million to supervise 3,000 defendants in the community who are awaiting
trial. The “supervised release” initiative permits judges to release defendants
to a supervisory program that allows defendants to remain at home with their
families and continue working while awaiting trial.

Those awaiting trial represent 63 percent of the
total jail population. Less than four out of 10 men and women sitting in
county and local jails are actually serving a sentence. Those sitting in jail
not serving a sentence drain about $14 billion a year from public coffers.

America’s bail system has become a central issue in
the fight to reverse mass incarceration. According to NBC
News, in courthouses, statehouses and ballot boxes across the country,
civil rights lawyers and progressive policymakers are working to curb the
practice of demanding money in exchange for freedom before trial.

“The nation needs to reform its bail system. But it’s
not as simple as saying, ‘Eliminate cash bail,’ ” Kevin Burke, a Minnesota
district judge and past president of the American Judges, Association told Stateline.

According to Burke, judges only get a few minutes to
assess a defendant’s case, and often judges set bail without knowing the full
circumstances.

“The fear (they have) is ‘I’m going to let somebody
go and they’re going to go out and do something terrible, or they won’t come
back, so I’ll set bail,.’” Burke said.

The current bail system denies freedom to thousands
of people who are presumed innocent but are financially challenged. Those who
sit in jail are at risk of losing their jobs, their homes, and their families.

Certainly, it’s unfair to incarcerate someone merely
because they cannot afford bail. It is equally unfair to every man and woman in
America to spend about $1 trillion, according to the Pretrial Justice Institute
on pretrial incarceration, which amounts to about six percent of the Gross
Domestic Product.

Correcting America’s bail crisis is not out of
reach. This isn’t about being tough on crime. It’s about being
fair. For some, even a nominal bond is out of reach. When an accused has
no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling.If the cost of pretrial detention could be cut in
half, taxpayers could save $7 billion a year. In these challenging economic
times those dollars are difficult to ignore.

.Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino. He welcomes readers’ comments.

Sunday, March 26, 2017

An age-old Pennsylvania legal tradition—the
inability to upset a jury verdict regardless of the content or subject matter
of a jury's internal deliberations—has been overturned by the U.S. Supreme
Court.

The decision came in the case of a Colorado man Miguel
Angel Peña-Rodriguez, who found out after his 2007 conviction that a juror said
he thought that Peña-Rodriguez was guilty of sexual assault because he was
Mexican and that "Mexican men take whatever they want."

The decision in Peña-Rodriguez v. Colorado, Docket
No. 15-606, decided March 6, involved the review—or lack thereof—of a Colorado
jury verdict. The trial court acknowledged the juror's apparent bias, but
refused to take any action, stating that the Colorado Rules of Evidence
prohibit a juror from testifying regarding the validity of a verdict if it
relates to statements made during deliberations. This is commonly referred to
as the "no-impeachment" rule.

Peña-Rodriguez's case made its way to the U.S.
Supreme Court. The high court found when a juror makes a clear statement
indicating that he relied on racial stereotypes to convict a defendant, the
Sixth Amendment requires an exception to the no-impeachment rule.

Every state has some version of the no-impeachment
rule. Pennsylvania was the only state, other than Colorado, that had addressed
the no-impeachment rule and declined to recognize an exception for racial bias.

Steele argued that his due process rights and right
to a fair and impartial jury were violated by the racial prejudice of one of
the jurors, his opinions about Steele's guilt, and deliberative discussions
that were held prior to formal deliberation.

One juror told Steele's legal team that another
juror's racial bias seeped into the jury room from the inception of the trial.
The juror stated in his declaration that "early in the trial one of the
other jurors commented on the race of the defendant. He also noted the race of
three victims and stated that, on that basis alone, the defendant was probably
guilty," adding that Steele should "fry, get the chair or be
hung."

The general rule regarding post-verdict jury
testimony is codified in Pennsylvania Rule of Evidence 606(b), the
no-impeachment rule which states: "Upon an inquiry into the validity of a
verdict ... a juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of anything upon
that or any other juror's mind or emotions in reaching a decision upon the
verdict or concerning the juror's mental processes in connection therewith, and
a juror's affidavit or evidence of any statement by the juror about any of
these subjects may not be received. However, a juror may testify concerning
whether prejudicial facts not of record, and beyond common knowledge and
experience, were improperly brought to the jury's attention or whether any
outside influence was improperly brought to bear upon any juror."

The Pennsylvania Supreme Court held, "Despite
Steele's contentions, the exception to the general no-impeachment rule is not
implicated here. The exception only applies to outside influences, not
statements made by the jurors themselves. ... The influence here was internal,
not from outside sources. Once the verdict was entered, the jurors ... became
incompetent to testify regarding any internal discussions or
deliberations."

Steele's three death sentences were affirmed.

There may now be a glimmer of hope for Steele.
Pennsylvania's unbending application of the no-impeachment rule has been
overturned. Justice Anthony M. Kennedy wrote in Peña-Rodriguez,
"A constitutional rule that racial bias in the justice system must be
addressed—including, in some instances, after the verdict has been entered—is
necessary to prevent a systemic loss of confidence in jury verdicts."

Kennedy conceded that the Supreme Court has ruled
previously—when there were allegations of jurors abusing drugs or alcohol or
having a pro-defendant bias—that the confidentiality of the jury process was
too important to allow a judge's investigation.

In Tanner v. United States, 483 U.S. 107 (1987),
the U.S. Supreme Court found that a defendant's right to a competent jury is
not violated by the application of the no-impeachment rule to allegations of
jurors sleeping and using drugs and alcohol during trial and deliberations.

However, the court has drawn the line at allegations
of racial, religious, or other bias by jurors infringing on a defendant's
constitutional right to a fair and impartial jury. "The same cannot be
said about racial bias, a familiar and recurring evil that, if left
unaddressed, would risk systemic injury to the administration of justice,"
Kennedy wrote.

"The nation must continue to make strides to
overcome race-based discrimination," Kennedy continued. "The progress
that has already been made underlies the court's insistence that blatant racial
prejudice is antithetical to the functioning of the jury system."

Kennedy said there must be a "clear
statement" that indicates a juror "relied on racial stereotypes or
animus to convict a criminal defendant" before the judge could consider a
defendant's claim. According to the Washington Post, Kennedy said it has
not been shown to occur very often in states that already allow such inquiry.

The court did not address what procedures a court
must follow when deciding a motion for a new trial based on juror testimony of
racial bias or the appropriate standard for determining when such evidence is
sufficient to require that the verdict be set aside.

Those matters have been left to individual states to
work out. That process—leaving it up to the states—has not met with much
success in modern Supreme Court jurisprudence. Namely, Atkins v.Virginia, 536 U.S. 304 (2002),
where it is still unclear how states are to determine intellectual disability;
and Miller v. Alabama, 567 U.S. ___ (2012), where the
high court only recently clarified whether the decision was retroactive.

Whether Steele's glimmer of hope amounts to anything
may now be up to the Pennsylvania legislature. •

Special to the Law Weekly Matthew T. Mangino is of
counsel with Luxenberg, Garbett, Kelly & George. His book, "The
Executioner's Toll, 2010," was released by McFarland Publishing. You can
reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

Saturday, March 25, 2017

There is an often repeated maxim in the American
criminal justice system relating to punishment, "He paid his debt to
society." That maxim is obsolete. Why? A man or woman who has been
convicted of a crime carries that debt forever — figuratively and, in many
instances, literally.

In Pennsylvania, the bipartisan "Clean
Slate" bill would automatically seal the record of an offender after
staying crime-free for 10 years with the intent of making it easier for people
convicted of nonviolent misdemeanors to find jobs and housing. The bill is the
first of its kind in the nation, reported the Buck County Courier-Times.

While the bill is admirable it does not go far
enough. To make a real impact on recidivism, a bill in Pennsylvania, or any
other state, must include all criminal offenses, not just nonviolent offenses.

In 2009, Alfred Blumstein and Kiminori Nakamura of
Carnegie Mellon University wrote in "Redemption in the Presence of
Widespread Criminal Background Checks," that there comes a time after a
period of crime-free behavior that an ex-offender is no more likely to commit a
crime than the general population.

Their analysis was based on a statistical concept
called the "hazard rate." The hazard rate is the probability, over
time, that someone who has stayed crime-free will be rearrested. For a person
who has been arrested in the past, the hazard rate declines the longer the
former offender remains crime-free.

The study examined the hazard rate for 18-year-olds
when they were arrested for a first offense of one of three crimes — robbery,
burglary and aggravated assault. For robbery, the hazard rate declined to the
same arrest rate for the general population of same-aged individuals at age
25.7, or 7.7 years after the robbery arrest. After that point, the probability
that the former offender would commit another crime was less than the
probability of other same-aged individuals in the general population.

Ten years crime-free should entitle an offender,
violent or nonviolent, to sweep the slate clean. Leaving an individual's
criminal record intact long after he or she remains no more of a threat than
anyone else, is simply nonsense.

This is a big deal. An estimated 65 million U.S.
adults have criminal records and they often confront barriers that prevent even
the most qualified from securing employment, according to the National
Employment Law Project. A single criminal conviction should not tarnish a life
otherwise spent abiding the law.

The public appears ready to look at alternatives.
According to Public Opinion Strategies, a polling company, 87 percent of voters
in Philadelphia suburbs said they believe the state "should break down
barriers" to help offenders get out from under their perpetual debt to
society.

The actual financial debt that comes with a
conviction comes in two forms, both equally devastating. First, the costs
associated with fines, court costs, administration fees and supervision fees.
Former offenders may be saddled with big fines, and state surcharges which may
be difficult, or impossible, to pay. Those costs may be around long after a
sentence is served.

Those fees begin to add up — the offender falls
behind and ends up in jail for failure to pay. The offender loses her job,
again, and the process starts all over — a form of indentured servitude.

Second, a criminal record makes it difficult to get
a job, public assistance, college loans, public housing, professional licensing
and a host of other collateral consequences of a criminal conviction. The
financial consequences are obvious and failure is inevitable.

A criminal conviction shouldn't have a lifetime of
consequences.

— Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was
released by McFarland Publishing. You can reach him atwww.mattmangino.com and follow him
on Twitter @MatthewTMangino

Friday, March 24, 2017

A shortage of required citizen witnesses to watch
eight lethal injections over a 10-day period next month prompted the state
prison director to call on Rotary Club members to volunteer, reported the Arkansas Democrat-Gazette.

Citizen witnesses are there to verify that the
individual executions are carried out according to law. A volunteer must be at
least 21 years old, an Arkansas resident, have no felony criminal history and
have no connection to the inmate or to the victim.

"The last times these were set, we actually did
not have enough people volunteer," Department of Correction Director Wendy
Kelley told Little Rock Rotary Club 99 members. "You seem to be a group
that does not have felony backgrounds and are over 21. So if you're interested
in serving in that area, in this serious role, just call my office."

The eight executions are scheduled two at a time
beginning April 17 and ending April 27.

Department of Correction spokesman Solomon Graves
said he does not have a current count on the number of citizen witnesses who
have signed up for the role. Kelley is making informal inquiries to find more
volunteers, he said.

"Depending on the response received, further
recruitment may not be necessary," Graves said.

The state's death penalty law, A.C.A. 16-90-502,
Section 3, requires that the prison director procure no fewer than six and no
more than 12 citizen witnesses for each execution. Kelley must determine that
witnesses meet the requirements and that they do not present a security risk.

Thursday, March 23, 2017

Pennsylvania Secretary of Correction John E. Wetzel and Director of Planning, Research & Statistics Dr. Brett Bucklin published the following commentary in the Harrisburg Patriot-News:

Most Pennsylvanians would agree that ensuring public
safety is what they want most from the criminal justice system.

When it comes to law and order we are all willing to
pay to be safe, and we recognize that decisions about public safety must never
be made based simply on balancing budgets.

At the same time, many Pennsylvanians are uninformed
about a current policy discussion underway in our criminal justice system,
which is mostly going unnoticed and hides under the false guise of improving
public safety.

The debate is over mandatory minimum
sentencing.

Several mandatory minimum sentencing laws were found
to be unconstitutional by the Pennsylvania Supreme Court in 2015.

Legislation to reinstate these laws are right now
being considered by the General Assembly, which might be fine if there was any
evidence that mandatory minimum sentences enhanced public safety.

But the record is clear that they don't.

Statewide crime numbers are only available through
2015, but show that the violent crime rate in Pennsylvania remained the same in
2015, while both property and drug crime rates declined.

Local statistics from Philadelphia and Harrisburg
reveal that crime rates for major crime types dropped in these cities during
2016.

Crime in Pennsylvania is lower now than it was in
1970, before mandatory minimums existed.

If mandatory minimums are supposed to enhance public
safety, this is not reflected in Pennsylvania's crime rates, which have
continued to drop without them.

Mandatory minimum sentencing laws require courts to
treat all defendants the same, regardless of the facts of the case or the
person's circumstances.

This one-size-fits-all approach does not work when
it comes to healthcare or education policy, so why should we think it works in
criminal justice?

Some prosecutors argue that mandatory minimums are
needed because some judges are too lenient. The fact is that judicial
discretion is already structured in Pennsylvania under sentencing
guidelines.

Judges in Pennsylvania sentence within the
recommended guidelines 90 percent of the time, and the seven percent of cases
where judges depart below the guidelines is mostly due to a recommendation by
the prosecutor. Sentencing guidelines render mandatory minimum sentences
unnecessarily rigid.

There is no good evidence that mandatory minimums do
anything to make the public safer.

Judge David Ashworth once again ordered Samuel
Santiago to serve 20 to 40 years in state prison for the repeated rape and
sexual assault of a girl beginning when she was 4 and continuing for nine
years.

Take one purpose of sentencing, to deter future
criminal behavior. The science on deterrence is now clear that it is the
swiftness and certainty of punishment that deters, not the severity.

Mandatory minimums target the severity of punishment
by unnecessarily ratcheting up sentence lengths. For criminals who tend
to be impulsive, inconsistently delivered and arbitrarily long sentences do
nothing to deter future crime.

A study by the Pennsylvania Commission on Sentencing
found that the imposition of a mandatory minimum sentence was not a predictor
of criminal re-offending.

Estimates are that if Pennsylvania's Legislature
reinstates mandatory minimums it could cost taxpayers as much as $85.5 million
per year.

For all of these reasons, a bi-partisan consensus
has built around the country that mandatory minimums are ineffective and should
be scaled back or eliminated.

More than 30 states have now reconsidered mandatory
minimum sentencing laws. Conservative groups like Koch Industries, the
American Legislative Exchange Council (ALEC), and the Commonwealth Foundation
here in Pennsylvania, have all expressed opposition to mandatory
minimums.

Yet many in our Legislature are ignoring these
realities and moving forward to quietly reinstate mandatory minimums. This puts
Pennsylvania out of touch with the facts.

Wednesday, March 22, 2017

President Donald Trump’s “skinny
budget” blueprint eliminates the 43-year-old Legal Services
Corporation, the federal entity that provides millions for state-based legal
aid operations, reported The Intercept. One-third of cases handled by LSC-affiliated groups involve women who are victims of domestic violence.Not to mention the cut would deny millions of poor
people access to the civil justice system, which would disproportionately
impact women, who make up 70 percent of clients served by LSC funds. One-third
of cases handled by LSC-affiliated groups involve women who are victims of
domestic violence.
Trump wrote that his “aim is to meet the simple, but crucial demand of our
citizens — a government that puts the needs of its own people first. When we do
that we will set free the dreams of every American, and we will begin a new
chapter of American greatness.”

Cutting a program that provides for the safety
of domestic violence survivors — among many others — seems an odd way to
achieve greatness, according to The Intercept. Currently, 93 percent of the LSC’s $385
million federal budget goes to fund 134 nonprofit legal aid organizations
operating more than 800 offices across the U.S. and its territories.

Tuesday, March 21, 2017

The neuropsychology issue raised in juvenile death
penalty cases before the U.S. Supreme Court has jumped to non-death
penalty cases like juvenile life without parole. Do you think brain development
cases will further seep into juvenile criminal jurisprudence? Explain
your position in detail.

A Maryland man has been arrested on a
cyberstalking charge in connection with allegedly sending an epilepsy sufferer
an animated Twitter message telling the victim that “you deserve a seizure,”
federal officials said.

The victim has been identified as Newsweek writer Kurt Eichenwald who is a critic of President Trump. The Justice Department said that after viewing the strobe image,
the victim “immediately suffered a seizure.”

Eichenwald has written for Newsweek about having
epilepsy.

Cyberspace is filled with harsh exchanges. However,
the allegations in this case suggest it may be one of the first in which
physical harm resulted from receipt of a cybermessage.

The
suspect was identified by the Justice Department as John Rayne Rivello, 29, of
Salisbury, Md.

The Twitter message told the recipient “you deserve
a seizure for your post,” according to a statement from the Justice Department.
The statement did not name the alleged victim.

On his Twitter feed, Eichenwald said that the FBI
had arrested “the man who assaulted me using a strobe on twitter that triggered
a seizure.” The Dallas police also investigated.

Monday, March 20, 2017

Radley Balko of the Washington Post continues his fight against bite mark junk science, this time taking on a Blair County, Pennsylvania judge. Balko writes:

Every scientific panel to review bite mark analysis
to date has found no scientific basis for its underlying premises: a) that
human dentition is unique, and b) even if (a) were true, that human skin is
capable of recording and preserving bite marks in a way that preserves that
uniqueness in a usable way. So far, the discipline has been found to be
scientifically unreliable by the National Academy of Sciences, the Texas
Forensic Science Commission, and the President’s Council of Advisors on Science
and Technology. The latter two panels have called for barring bite mark
evidence from criminal trials. Experiments by University of Buffalo scientists
Mary and Peter Bush have also found no scientific basis for bite mark analysis.

Unfortunately, none of this seems to matter to the
courts. Also of apparently little interest to the courts are the more than two
dozen people wrongly arrested or convicted due to bite mark testimony. To date,
every single court in the country to hear a challenge to bite mark evidence has
shot that challenge down. Bite mark analysis is winless in scientific reviews,
but it is undefeated in court.

He was convicted and sentenced to death in both 1985
and 1990, but both times an appellate court sent the case back, first for a
violation involving
race-based jury selection and then based on improper testimony from an
expert witness for the prosecution.

A doctor hired by Madison's attorneys with the Equal
Justice Initiative, Dr. John Goff, had testified at a state competency trial in
2016 that Madison does not understand why he is being executed or the act for
which he is being punished, according to the 11th Circuit opinion.

"None of the evidence at the competency hearing
belies Dr. Goff's testimony. We therefore conclude that Mr. Madison is
incompetent to be executed," the 11th Circuit ruled today.

Madison, 66, has suffered strokes resulting in
significant cognitive and physical decline, according to the appeals court
ruling.

At the competency hearing, Madison presented
unrebutted testimony from Goff that his strokes caused major vascular disorder
(also known as vascular dementia) and related memory impairments and that, as a
result, he has no memory of committing the murder--"the very act that is
the reason for his execution"--and does not believe he killed anyone,
the appeals court stated in its order.

The case will now be taken up before the 11th
Circuit Court of Appeals, which has set oral arguments for June 23.

Saturday, March 18, 2017

Are freedom and fear compatible? The U.S.
Constitution provides people—-not just citizens—all people in America, with the
freedom of movement, assembly, religion and speech.
How does fear play a role in exercising those fundamental rights? People go to
great lengths to avoid being victimized. According to Gallup, more than one in
three Americans say they are afraid to walk alone at night near their home.
The number of Americans afraid to venture out alone at night is lower today
than when crime rates were soaring in the 1990s. However, fear has not
decreased as sharply as the drop in violent crime. In fact, while violent crime
is at a record low, the percentage of those afraid to walk alone at night has
fallen only one percentage point in three years.
However, fear is politically powerful. Attorney General Jeff Sessions is
warning that the U.S. faces "a dangerous new trend" in crime although
he acknowledged that crime rates remain near historic lows across the United
States. Mixed messages breed contempt.
Ironically, the unrealistic fear of crime has had an enormous impact on crime.
Experts may not say it and the average American may not admit it, but
decreasing crime rates have come at a precious cost — the sacrifice of personal
liberty. John Q. Wilson, the late criminologist, wrote several years ago in The
Wall Street Journal, "Another possible reason for reduced crime is that
potential victims may have become better at protecting themselves by equipping
their homes with burglar alarms, putting extra locks on their cars and moving
into safer buildings or even safer neighborhoods."
Americans have slowly reinvented their way of life to protect themselves from
the threat of violence and that evolution may be driving down crime rates in
the process. More research is warranted, but it appears that the key to falling
crime rates is not so much a matter of what we do, but rather what we don't do.
Most citizens are not even aware that some fundamental constitutional rights
have begun to erode in the name of crime fighting. The Supreme Court of the
United States has chiseled away at the Sixth Amendment guarantee of
"effective" counsel; the Fourth Amendment protections against
unlawful search and seizure; and the Fifth Amendment right to remain silent.
How about freedom of religion? To be a Muslim in America is to be afraid. The
president has signed his second executive order banning refugees from a number
of Muslim-majority nations. In fact, the president's first executive order made
exceptions for Christian refugees.
Jewish synagogues and community centers are under constant threat in recent
months. Non-Christians are legitimately fearful about the inclusiveness of the
First Amendment.
Those who choose to take to the street in that time-honored act of protest are
fearful. The right to assemble has been met with force in some parts of the
country. Police officers in military gear, confronting protesters in armored,
surplus military vehicles is a frightening and unnerving sight and the prospect
of using the National Guard to aid in immigration enforcement is equally
frightening.
The executive branch of government has sought to minimize the press and muzzle
freedom of speech. The ongoing assault on the mainstream media and the idea of
"fake" news is a blow to the fabric of the most fundamental of
freedoms, freedom of the press. The line between reality—"Russian
influence on the election"—and make believe—"my lines are
tapped"—is becoming blurred. The inability to distinguish truth from
fiction is dangerous.

Finally, the Second Amendment and the indisputable right to bear arms. A
handgun in a women's purse or strapped to one's side is not a sign of
freedom—it is a sign of fear.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner's Toll, 2010 was released by McFarland
Publishing. You can reach him atwww.mattmangino.com and
follow him on Twitter @MatthewTMangino.

Thursday, March 16, 2017

"The execution of the innocent believed guilty
is a miscarriage of justice that must be opposed whenever detected.

Most human activities like medicine, manufacturing,
automobile, and air traffic, sports, not to mention wars and revolutions, cause
the death of innocent bystanders. Nevertheless, advantages outweigh the
disadvantages, human activities including the penal system with all its
punishments are morally justified."

Do you agree or disagree with this statement?
Provide a detailed explanation of your position.

On March 29, 2017, the Supreme Court will hear oral
arguments in the consolidated cases of Turner
v. United States and Overton
v. United States. The Court does not rule upon questions pertaining to
prosecutorial misconduct and the State’s duty to disclose exculpatory evidence
very often, wrote Bidish Sarma, an attorney who represents individuals sentenced to death or LWOP, for the American Constitution Society. When it does, it tends to rely on decisions handed down decades ago
despite evidence that courts struggle to enforce the relevant principles
consistently and appropriately. The Turner-Overton matter thus
presents both an opportunity and a challenge to the justices. The opportunity?
An uncommon occasion upon which it can clarify principles and curtail the
confusion that permeates lower courts’ opinions. The challenge? Moving beyond
the facts presented and penetrating the deeper questions that reside beneath
the surface.

The question presented by these cases is a
relatively narrow one: whether the Petitioners’ convictions must be set aside
under Brady v. Maryland. That question is one the Court
itself generated; the Petitioners initially asked the Court to resolve
thornier questions that sometimes arise when the State fails to turn over all
exculpatory evidence before trial. While it appears that SCOTUS will most
likely take its well-worn minimalist
approach in the Bradydue process context here, several pleadings
demonstrate that deeper, systemic concerns warrant attention.

To recap the Brady test courts use post-trial: a
new trial must be granted where the defendant has proven: (1) suppression—that
the State actually failed to turn over the information at issue; (2)
favorability—that the information would have helped the defendant; and (3)
materiality (also known as prejudice)—that, had it been disclosed before the
trial, there was “any reasonable likelihood” it could have “affected the
judgment of the jury.” (Wearry
v. Cain (2016)

The Solicitor General argued in Turner and Overton. Although there is no dispute that
the prosecution failed to turn over several categories of exculpatory evidence,
the Government’s
brief on the merits states, “[t]he government complied with is
obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures
violate Brady only when withheld information is both favorable and
material.” See how easily the Government eludes that distinction between a Brady obligation
and a Brady violation? In the first two sentences in the summary of
its argument, the Government exploited a jurisprudential problem that the
justices should address.

The Turner-Overton case is likely to be
another in the line that reminds lower courts that materiality is not an
impossible hurdle for defendants to overcome. Yet, it has the potential to be
much more. There should be no doubt that much more is needed. Prosecutorial
misconduct pervades the
criminal justice system. Despite Brady’s promise, the malleable materiality
standard has been bent in the State’s favor. If the Court does not
change the standard itself, a finding of materiality in Turner-Overton may
provide temporary assistance, but a band-aid will not suffice where an
amputation is needed.

Wednesday, March 15, 2017

After more than 25 years on death row, James Bigby was put to death for launching a 1987 crime spree that led to the killing of four people, including a 4-month-old boy he drowned in a sink, reported Reuters.

Bigby was executed by lethal injection at the Texas death chamber in Huntsville and
pronounced dead on March 14, 2017 at 6:31 p.m.

The execution was the 542nd in Texas since the U.S.
Supreme Court reinstated the death penalty in 1976, the most of any state. It
was also the sixth this year in the United States, and four of those execution
have taken place in Texas.

There were no last-minute appeals for Bigby. Lawyers
previously asked for a halt to his execution, saying he had schizophrenia and
his mental illness was not properly considered as a mitigating factor during
sentencing.

Bigby was convicted and sentenced to death for the
Fort Worth-area murders of Michael Trekell, 26, and his son Jayson, a 17-week
old infant. He was also suspected in but not charged with the deaths of Calvin
Crane and Frank Johnson.

Sometimes in multiple killings, prosecutors opt not
to charge a person with all the murders, leaving open the possibility of
bringing those charges later if there are problems at trial.

Bigby thought his three friends were trying to block
a worker's compensation claim he filed. To stop them, he shot Trekell in the
head and killed the baby in December 1987, according to court documents. Later
the same day, he killed Crane and went the next day to Johnson's house and
fatally shot him when he opened the door, the documents said.

He was arrested after a standoff with police during
which he threatened suicide and said he wanted to go out "in a blaze of
glory," the documents showed.

During a recess in his 1991 murder trial, Bigby
retrieved a revolver from the judge’s bench, entered the judicial chambers,
pointed the gun at the judge’s head and said: “Let’s go," the documents
said.

He was eventually subdued and later condemned to
death.

In his last statement, he offered apologies to the
families. "I’m sorry. I’m sorry. I hope that my death will bring you peace
and closure," he was quoted as saying by the Texas Department of Criminal
Justice.

Tuesday, March 14, 2017

“This court has recognized that they have a high
rate of recidivism and are very likely to do this again,” argued Robert C. Montgomery before the U.S. Supreme Court, Montgomery was defending
a North Carolina statute that
bars sex offenders from using Facebook, Twitter and other social media
services.

The Supreme Court has indeed said the risk that sex
offenders will commit new crimes is “frightening and high,” reported Adam Liptak in the New York Times. That phrase, in a 2003 decision upholding
Alaska’s sex offender registration law, has been exceptionally influential. It
has appeared in more than 100 lower-court opinions, and it has helped justify
laws that effectively banish registered sex offenders from many aspects of
everyday life.

But there is vanishingly little evidence for the
Supreme Court’s assertion that convicted sex offenders commit new offenses at
very high rates. The story behind the notion, it turns out, starts with a
throwaway line in a glossy magazine, wrote Liptak.

Justice Anthony M. Kennedy’s majority opinion in the
2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and
that opinion did include a startling statistic. “The rate of recidivism of
untreated offenders has been estimated to be as high as 80 percent,” Justice
Kennedy wrote in the earlier case, McKune v. Lile.

The guide, a compendium of papers from outside
experts, is 231 pages long, and it contains lots of statistics on sex offender
recidivism rates. Many of them were in the single digits, some a little higher.
Only one source claimed an 80 percent rate, and the guide itself said that
number might be exaggerated.

The source of the 80 percent figure was a 1986
article in Psychology Today, a magazine written for a general audience. The
article was about a counseling program run by the authors, and they made a
statement that could be good for business. “Most untreated sex offenders
released from prison go on to commit more offenses — indeed, as many as 80
percent do,” the article said, without evidence or elaboration.

That’s it. The basis for much of American
jurisprudence and legislation about sex offenders was rooted in an offhand and
unsupported statement in a mass-market magazine, not a peer-reviewed journal.

“Unfortunately,” Melissa Hamilton wrote in a new article in
The Boston College Law Review, “the Supreme Court’s scientifically dubious
guidance on the actual risk of recidivism that sex offenders pose has been
unquestionably repeated by almost all other lower courts that have upheld the
public safety need for targeted sex offender restrictions.”

The most detailed examination of how all of this
came to pass was in a 2015
article in Constitutional
Commentary by Ira Mark Ellman and Tara Ellman, who were harshly
critical of the Supreme Court.

“Its
endorsement has transformed random opinions by self-interested nonexperts into
definitive studies offered to justify law and policy, while real studies by
real scientists go unnoticed,” the authors wrote. “The court’s casual approach
to the facts of sex offender re-offense rates is far more frightening than the
rates themselves.”

There are many ways to calculate recidivism rates,
and they vary depending on a host of distinctions. A 2014 Justice
Department report found, for instance, that sex offenders generally
have low overall recidivism rates for crimes. But they are more likely to
commit additional sex offenses than other criminals.

In the three years after release from prison, 1.3
percent of people convicted of other kinds of crimes were arrested for sex
offenses, compared to 5.3 percent of sex offenders. Those findings are broadly
consistent with seven
reports in various states, which found that people convicted of sex
crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in
time periods ranging from three to 10 years.

Monday, March 13, 2017

When does a person have the right to use deadly
force in self-defense in Ohio? That question promises to generate a lot of
attention in Trumbull County.

On Feb. 25, Nasser Hamad allegedly shot five people
in a vehicle outside of his home in Howland. Two of those wounded died and the
other three were injured. Hamad recounted the incident to police, saying all
five occupants of the vehicle – 20-year-old Joshua Williams, 19-year-old Josh
Haber, 43-year-old April Trent-Vokes, 20-year-old Bryce Hendrickson and a
17-year-old juvenile – left the van and a fist fight ensued between Hamad and
the juvenile. Once the fight ended, all five returned to the minivan, The Vindicator
reported.

Hamad allegedly returned to his house where
according to his statement to police he retrieved a 9mm handgun from his
bedroom and left the house shooting into the vehicle. After unloading the
magazine, Hamad told police he went back into his house and retrieved more
ammunition.

A witness told police, Hamad came back outside
appeared with the gun and began again to shoot into the vehicle.

Self-defense claim

Hamad’s attorney suggested that his client will make
a claim of self-defense and filed a series of legal documents with the court
last week.

The law in Ohio requires a defendant asserting
self-defense to prove by a preponderance of the evidence that the defendant was
not at fault, had a belief that he was in imminent danger of death or serious
bodily harm and retreat was not required.

While one has a duty to retreat when threatened in
public, Ohio has the Castle Doctrine which sets forth a separate set of
guidelines when facing a threat in one’s home. You do not have to retreat if an
intruder enters your home and threatens you or your family.

Ohio Senate Bill 184, codifying the Castle Doctrine,
became effective in 2008. The Castle Doctrine provides that “a person is
presumed to have acted in self-defense or defense of another when using defensive
force that is intended or likely to cause death or great bodily harm to another
if the person against whom the defensive force is used is in the process of
unlawfully and without privilege to do so entering, or has unlawfully and
without privilege to do so entered, the residence or vehicle occupied by the
person using the defensive force.”

What is included in the term “residence?”

Some would suggest that the curtilage – the area
immediately surrounding the residence – would be considered part of the
residence. The curtilage is commonly considered when evaluating Fourth
Amendment search and seizure cases.

In 2013, the U.S. Supreme Court decided that a drug
sniffing dog that came onto a porch and hit on drugs resulted in an illegal
search because the dog was on the curtilage of the home without a warrant. On
the other hand, at least one court has found that curtilage does not apply to
the Castle Doctrine defense of a residence.

A defendant must reasonably believe that he is in
danger of imminent death or serious bodily harm. Retreating into one’s home
after an altercation outside of the home seems to lend little credence to a
claim that lethal force was needed in self-defense.

According to Alexis M. Haddox writing in the Capital
University Law Journal, “[T]he courts avoided applying the presumption [of
justification through the Castle Doctrine] where it would have resulted in
acquitting an at-fault defendant, or where it simply would have produced an
unjust outcome.”

Justification defense

A defendant has the right to assert a justification
defense – he was justified in using lethal force. However, justified use of
lethal force is extremely rare. For instance, according to the New York Times,
in 2010 “there were only 230 justifiable homicides involving a private citizen
using a firearm reported to the F.B.I.’s Uniform Crime Report.”

A local courtroom may be the venue to get a
first-hand look at a rare and little used defense and the machinations of
defense lawyers and prosecutors as they wade through a morass of social media
posts, statements and eye-witness accounts.

Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.